According to the California Fair Employment and Housing Act, (Gov. Code §12940 et seq.), it is illegal for an employer to fire, fail to hire or discriminate in any way against a person because of his sexual orientation. Sexual orientation can mean homosexuality, bisexuality, and heterosexuality. It also includes the perception that a person has some characteristics or in case a person actually has the characteristics of a type of sexual orientation.
California Fair Employment and Housing Act applies to employers with five or more employees. The exception is the cases of harassment, where there is no minimum employer size. The FEHA also applies to labor unions, employment agencies, state licensing boards, and state and local governments. Though, the FEHA doesn’t provide protection for federal employees.
Examples of Sexual Orientation Discrimination in the Workplace Include:
- Employer terminated the employee based on his sexual orientation
- Employer refused to hire a transgender man
- Employer fired an employee because he is a gay
- Employer harassed an employee because of a gender transition
- Employer denied a person an employee promotion because of his sexual preference
Filing a Complaint
A discriminated employee can file a complaint with the Department of Fair Employment and Housing (DFEH), which will investigate the complaint and try to resolve the problem.
In case the DFEH finds evidence of discrimination based on sexual orientation and is not able to reach a settlement between the employer and employee, the agency can “prosecute” the case by holding a formal hearing or filing a lawsuit on behalf of the employee. In case the agency decides not to prosecute the case, the employee will receive a “right to sue” notice from the Department of Fair Employment and Housing.
A person has also a right to request a “right to sue” notice at any point in the investigation process, which will stop the agency’s investigation and allow the employee to proceed directly with a lawsuit. A person is eligible to file a lawsuit in court only after receiving a right to sue notice.
Statute of Limitations
A person will have one year from the date of the sexual orientation discriminatory act to get a right-to-sue letter from the Department of Fair Employment and Housing. But, in case the person was discriminated by a public entity, he will have only six months to fill a complaint. In case a person fails to file a complaint within the mentioned time limits, he may lose his right to legal protection from the harassment or discrimination.
What Can an Employee Recover in a Sexual Orientation Discrimination Lawsuit?
In case a person wins a discrimination lawsuit he may be eligible to recover the income that was lost as a result of the discrimination. The person can particularly recover:
- Compensatory damages, which include lost wages and benefits from his employment and any other economic disadvantages that happened as a result of because of discrimination.
- Emotional distress damages.
- Punitive damages. The jury will consider the employer’s misconduct in case it was extremely malicious or outrageous. Punitive damages are generally awarded for punishing the defendant.
- Attorney’s fees.